IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.4558 OF 2009 (Arising out of S.L.P. (C) No.17452 of 2008)

B.V. Smitha Rani                      ...Appellant(s)

Versus

M.K. Girish                     ...Respondent(s)

O  R  D  E  R

Leave granted.

Heard learned counsel for the appellant. In spite of service of notice, nobody has entered appearance on behalf of  

the respondent to contest the prayer made in this appeal. The parties were married on 28.5.2003.  After sometime, the appellant-

wife  filed  Matrimonial  Case  No.82/2005  for  grant  of  divorce  on  the  ground  of  cruelty.  In support of her case, the appellant examined herself as PW-1 on 7.9.2006.  

On that day, the respondent-husband remained absent and his lawyer did not cross- examine  the  appellant.   Thereafter,  the  case  was  posted  for  evidence  of  the  

respondent on 28.9.2006.  At that stage, the respondent applied for recording his  evidence by video conferencing.   The Family  Court  rejected his  prayer  and the  

special leave petition filed by him was dismissed by this Court.  On 28.9.2006, the  respondent’s counsel filed vakalatnama and written statement.  The Family Court  

rejected  the  written  statement  on  the  ground  of  undue  delay.   Thereupon,  the  respondent filed  writ petition  no.1031 of 2006, which was

...2/-

- 2 -  allowed by the High Court and a direction was issued to the Family Court to allow  

the respondent to contest the case on merits. In furtherance of the High Court’s directive, the Family Court fixed the  

next date as 7.11.2006 for cross-examination of the appellant, but the respondent  did not avail that opportunity.  On the next two dates also, the respondent’s counsel  

did not cross-examine the appellant.  Instead, an application was filed on behalf of  the respondent for amendment of the written statement, which was dismissed on  

11.1.2007.  Simultaneously, the Family Court closed the evidence of the respondent  and fixed the case for arguments.  Application filed on behalf of the respondent for  

recall  of  that  order  was  dismissed  on  23.1.2007  and  the  petition  filed  by  the  appellant was decreed on 22.2.2007.     

On an appeal preferred by the respondent, the High Court remanded the  case  to  the  Family  Court  with  the  direction  to  give  final  opportunity  to  cross-

examine the appellant (PW-1) and to adduce his evidence.  That order has been  challenged in this appeal.

Having heard learned counsel for the appellant and perused the records,  we are convinced that the High Court was not justified in remitting the matter to  

the Family Court with a direction to give final opportunity to the respondent to  cross-examine the appellant and to adduce his evidence.  The premise on which the  

High Court passed the impugned order, namely, non-grant of adequate opportunity  to the respondent to cross-examine the appellant and adduce his evidence is clearly  

erroneous,  because,  as  mentioned  above,  after  disposal  of  writ  petition  no.  1031/2006 filed by the respondent, the Family Court fixed the case on three

...3/-

- 3 -  

different dates for cross-examination of the appellant, but the respondent did not  avail that opportunity.  In this view of the matter, the Family Court had rightly  

closed the evidence of the respondent,  heard the arguments and pronounced the  judgment and the High Court committed serious error by remitting the matter for  

giving further opportunity to the respondent to cross-examine the appellant  and  adduce his evidence.

Accordingly,  the  appeal  is  allowed,  impugned  order  rendered  by  the  High Court is set aside and the matter is remanded to it to dispose of the appeal on  

merits in accordance with law after giving opportunity of hearing to the parties.

......................J.             [B.N. AGRAWAL]

......................J.             [G.S. SINGHVI]

New Delhi, July 20, 2009.